By ensuring a certain percentage of seats are reserved for women, there is an opportunity to promote greater gender diversity within the leadership of the Supreme Court Bar Association but there are also questions being raised about whether 77 years post-independence, reservation was still the most effective tool for positive discrimination, writes Dhiya Veer.
The topic of reservation for women in the Supreme Court Bar Association (SCBA) reflected broader discussions on gender equality and representation in the legal profession. While senior advocate Kapil Sibal won the election to the post of the president of the SCBA, senior advocate Rachna Srivastava was elected vice president and advocate Vikrant Yadav secretary of the association in the polls held on Thursday.
Introducing reservations for women in SCBA elections is being seen as a step towards addressing the gender imbalance that often exists in legal associations and the legal profession as a whole. By ensuring a certain percentage of seats are reserved for women, there is an opportunity to promote greater gender diversity within the leadership of the SCBA but there are also questions being raised about whether 77 years post-independence, reservation was still the most effective tool for positive discrimination. The question looms large if women truly require a reservation to secure adequate representation, and should this be in a professional environment?
Proponents of such a measure argue that it would help address systemic barriers that hinder women from fully participating and advancing in the legal profession. It can also serve as a means to amplify women's voices within the SCBA, leading to more inclusive decision-making and policies that better reflect the needs and perspectives of all members.
However, there may also be considerations and debates regarding the implementation of such a reservation policy. Some members of the legal community may argue against it, citing concerns about fairness, meritocracy, and the potential for tokenism. They may advocate for alternative strategies to promote gender equality and representation, and initiatives to address bias and discrimination within the legal profession.
It's counterproductive
Lalita Kaushik, an advocate on record, believes, “Reservation based on sex is never a fair solution; on the other hand, it would be counterproductive, polarising men and women. Merit would be removed from the conversation, and women would hold positions because they are women and not because of their professional capabilities.”
The order came to light as a response to numerous concerns regarding the disparity of women in the legal profession. Earlier this year it was noted that of the 56 designations of senior advocates, only 11 were women. On further investigating the cause of this notable discrepancy, only 19% of women occupied positions as practising litigants. A senior advocate who wished to remain anonymous stated, “The statistics are known, but the root of the problem is still not addressed. Yes, there are fewer women senior advocates, but that is simply a reflection of the stark inequity at the entry level of advocates themselves. This is a delusory idea that women require reservation for representation; they are more than capable to contest on their own merit, and a fairer mechanism would be to provide them with resources that they lack rather than the proposed 1/3rd reservation. Indira Gandhi did not become Prime Minister through a reservation.”
Revisiting why fewer women practice litigation or remain in the profession long enough to see promotions to the Supreme Court and Bar Associations, advocate Lalita elaborated, “As a profession, litigation requires commitment. In India, women have multifaceted identities, and bearing household tasks and child-rearing duties, the ability to manage both the domestic and professional sphere becomes daunting.” The notion of women shouldering dual roles, both as caretakers of the household and as professionals, is not restrained to the Indian context. This juggling act often places an undue burden on women, leading to what working women are often acquainted with, “the maternal penalty,” wherein their professional advancement is hindered by societal expectations and responsibilities associated with motherhood."
On an experimental basis
“I think of law as a community service,” says SNDT Women's University associate professor Suman Kalani. “India needs to be perceived holistically and not just from the urban perspective. In this context, the concept of reservation becomes important in providing platforms and creating more opportunities for equality. However, any reservation when provided, requires comprehensive research and must be proportionally allocated,” she continues. In a different view from those earlier presented, we see a similar rationale from the Supreme Court, which confirmed that this reservation for the SCBA would be on an ‘experimental basis,’ with any difficulties in reform to be decided by the court. Here, it becomes important to identify why we have this concept of ‘reservation’ as aid to foster inclusion of marginalised communities/groups and create equity. Women have historically faced systemic injustices, and a reservation in the SCBA would help female voices be heard and reflected in the decision-making process, creating better working environments and more compatible schemes. “I remember working in the courts when I was litigating and not being able to have a usable washroom. Maybe having women on executive committees of even lower Bar Associations (High Court, District Court..) would help improve working conditions for women in the legal sphere,” adds Suman.
At the core of reservation, it is simply a response to a social issue. And although laws can help influence behaviours and prevailing beliefs over time, the root of any social problem lies in the mindsets of the society that enables it. Here, assistant lecturer Mahak Jain has an optimistic view for the future, “I see it in my working environment and with my peers... there are noticeably higher ratios of women in the legal profession, entering as lawyers, as faculty, and even in administration. Perhaps, right now the reservation may be beneficial to correct a historical exclusion, but moving forward, on reevaluating the reservation over time, we may not even need it.” This progressive outlook, although true for urban society, is still a reflection of social change. There are more women in professional environments, and the newer generations set an example for a society that is more inclusive in balancing familial responsibilities and redefining gender roles. Women holding these positions on the SCBA may not detract from meritocracy; instead, they can be seen as role models for other women aspiring to higher positions in the legal profession.
Can be empowering
“I work as a POSH (Prevention of Sexual Harassment in the Workplace) consultant at my firm, and I have seen how women can be taken advantage of and the discrimination they can face from superiors. This reservation in a body as important as the SCBA would be empowering for women in law and would serve as a landmark to work towards,” says Archana Madan Kohli, an advocate, and POSH consultant.
"It would be highly beneficial, and the SC directing this order is righting past wrongs and uplifting women,” adds Rashmitha V Das, a POSH consultant, and advocate.
In the upper echelons of the litigating profession, the concept of reservation finds itself on uncertain ground. While inclusivity and diversity are championed across various industries, the legal arena, often regarded as a bastion of tradition, remains somewhat resistant to the idea of reservations. “Difference is the law of nature, and equality cannot be attained through artificial means. Proportional representation is not what equality should be understood as; rather, there should be equality of opportunity. Women, men, anyone who doesn’t have the means to stand for election or otherwise should be provided with the same — reservation would not be an ‘equal’ answer,” believes a senior advocate at the Supreme Court. This reflects an existing and prevailing sentiment that meritocracy should reign supreme, with appointments and advancements based solely on qualifications, experience, and legal acumen. The notion of preferential treatment based on factors like ethnicity, gender, or socioeconomic background is viewed with scepticism, if not outright opposition, as it is perceived to potentially compromise the integrity and effectiveness of the legal system.
The concept of reservation serves as a double-edged sword, sparking ongoing debate within the Indian socio-political landscape. Globally, the issue of women's representation remains unresolved, and the response to recent Indian rulings reflects the diversity of opinions on the advantages and drawbacks inherent in implementing reservation in professional domains. This recent ‘pilot project’ of the Supreme Court could shed light on the efficacy of affirmative action measures.